OK to fire for Facebook complaint about work?

Q. One of my employees recently made a post on Face­­book expressing his dissatisfaction with his job. In the post, he talked about being paid too little for the amount of work he performs, and that the whole office needs renovating, claiming, “rats don’t even want to work there.” Can I fire him for this, or at least discipline him?

A. No. You can neither fire nor discipline him for such a post on Facebook. Recent decisions from the National Labor Relations Board clearly hold that employees have the right to discuss working conditions with co-workers on social media websites, and cannot be disciplined for such discussion.

Employees have the right under both the California Labor Code and the National Labor Rela­­tions Act to discuss working conditions, pay or other work-related issues, and these rights extend into the domain of social media.

Along these same lines, whistle-blower protection may also arise if the employee reports any violation of state, federal or local law over social media.

What about a risqué post on Facebook? Can we fire an employee for that?

Q. Yesterday I logged onto my Facebook account and saw that one of my employees had posted a picture of herself that is not workplace-appropriate. In this picture, she had very little clothing on and a bottle of alcohol in one hand. She is obviously not the mature, trustworthy employee that I thought she was. Can I discharge her from employment for this?

A. You cannot discharge or discipline her for posting risqué photos of herself online. In California, employees have the rights to perform lawful off-duty activities and to privacy regarding these activities.

You can only discipline or discharge employees if the off-duty conduct is illegal, if it negatively affects the employee’s ability to perform his or her job or if it presents an apparent conflict of interest to the business.

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